Will “Sorry” Work?

Dear Dr. Silverman,
I recently admitted a patient with pneumonia which was causing some altered mental status. When the house staff came down to evaluate the patient, they lowered the guard rail down, then walked away. The patient fell and broke a hip. I told the house staff they would need to deal with the family, but they wanted me to do it because the patient was in the ED. It’s not my fault the patient fell, and I didn’t want to talk to the family as it could increase my risk of getting sued. What do I do?
Signed,Trying to avoid the suit

Dear Avoiding the Suit,
Although patients fall from beds, this unfortunate event may have been prevented with a little more attention to detail (guard rails up) by the other care providers. Also unfortunate is that it happened to your patient in your ED while you were the attending physician. This scenario raises several issues.
It may sound obvious, but your first best defense is a good offense. Red flags are raised higher, and families are more upset, when the hip fracture isn’t diagnosed until hospital day three or the lac that occurred wasn’t repaired and then got infected. Show the family that even though the patient fell, the care she received was appropriate and thorough.

If the family is present, you will have conversations with them immediately. However, if you can get a few minutes, particularly if no family is present, now is the time to call your medical director and risk manager for advice and to understand your department’s policies on transfer of care. In terms of written responsibility about who’s responsible for what, a transfer of care policy may state that either admitted patients are solely the responsibility of the admitting physician or that any patient in the ED is the responsibility of the emergency physician. This may dictate exactly what you can or should have the residents do. Also, make sure the admitting attending is aware of the issue – it’s their patient as well as yours.

Service Recovery and Disclosure
If the family is going to file a lawsuit, their lawyer will cast a wide net and you’ll be named no matter how much or how little you’re at fault. Therefore, it’s in your best interest to minimize the malpractice risk by performing service recovery. This is your opportunity to discuss with the family what happened, not to cast blame, which will look poorly if there is a negligence suit. Your risk manager may be able to advise you best about how to script the conversation. In the best-case scenario, you, the medical resident and the risk manager all sit together with the family. I would expect that an attending physician’s ability to perform service recovery and minimize the potential damage from a “sentinel event” is almost always going to be better than what a resident can do. If nothing else, attendings have more experience in talking to families.
Most families in this situation do not have itchy trigger fingers waiting to dial a lawyer. Rather, they’re honestly looking for information regarding the event. It’s important to tell the truth, give accurate information of what happened, why it happened, and any implications for the patient’s future health while not casting blame or highlighting the mistake. Here’s what not to say: “The intern left the guard rail down allowing your mother to fall out of bed and break her hip and oh, by the way, a hip fracture at her age correlates to a huge five year mortality rate.” Instead, I might say, “unfortunately, your mother fell out of bed. It appears that the guard rail was down at the down. We will conduct a full investigation as to what happened. My primary concern now is taking care of your mother’s injuries and making sure you’re aware of the situation. I’ll follow up with you after our investigation is complete.”

The family needs to understand your commitment to investigating the case and what you’ll do to prevent similar occurrences from happening again. The team of providers, whether it’s from the ED or the patient’s attending, will need to follow up with the family once the investigation is complete. Risk management studies suggest that by following this model, there is a correlation with a decrease in lawsuits.

Of course, you may feel badly enough – or be pissed off enough – to say that “a mistake was made” and that the hospital should or will pick up the tab for the additional costs. But that’s not our role. In fact, from a malpractice perspective, admissions of liability or fault can be admissible as evidence of liability. Simply discussing events that had an adverse effect on the patient is not considered an admission of liability (remember that a negative outcome isn’t always the result of an “error”). You certainly can offer an apology; in most states, an apology or expressions of sympathy are inadmissible as evidence of liability and therefore cannot be used against you in court. Ultimately, it’s the hospital risk manager and the malpractice insurance company that can decide to admit a mistake was made and offer compensation.

Some hospitals are even being proactive, owning up to mistakes after a root cause analysis is completed, and offering compensation to the patient/family prior to anyone contacting an attorney or filing a claim.
Regardless of the case or situation, the attending EP is typically the best person in the ED to balance the medical needs of the patient, perform service recovery, disclose the events to the family, and minimize malpractice exposure. At the end of the day, we must look beyond policies stating who the patient belongs to and make sure we’re doing the right thing for the patient, the hospital and our group.

Michael Silverman, MD, is chairman of emergency medicine at Harbor Hospital in Baltimore, MD and is on TEAMHealth’s Medical Advisory Board.